Such a violation occurs where the operative Guidelines at sentencing "produce a sentence harsher than one permitted under the Guidelines in effect at the time the crime is committed." United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994). Zimmer has not shown that his sentence under the post-1997 Guidelines is harsher than the sentence he would have received had the earlier version of the Guidelines been applied.

Generally, the sentencing court should apply the Sentencing Guidelines in effect at the time of sentencing unless doing so is violative of the ex post facto clause. United States v. Reetz, 18 F.3d 595, 597 (8th Cir. 1994) (citation omitted). The ex post facto clause proscribes application of a law that changes punishment in a manner that inflicts greater punishment than the law annexed to the crime at the time of its commission.

"Some offenses, such as conspiracy, are `continuing offenses' for which the completion date controls which version of the Sentencing Guidelines should apply." United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994) (citations omitted). The conspiracy of which Arlie was convicted occurred between October, 1994 and July 11, 1996.

Under these principles, Mr. Tony argues that counts may be groupable under one subsection and that those grouped counts can group with still more counts under other subsections. See United States v. Reetz, 18 F.3d 595, 599 & n.6 (8th Cir. 1994) (noting that § 3D1.2's "commentary envisions that in some cases the district court must apply several of § 3D1.2's subsections," and that the defendant's "sentencing group consisting of all the five counts to which [he] pleaded guilty . . . . is consistent with the [Guidelines] commentary" that "all counts may form a single Group" (quoting U.S.S.G. § 3D1.2, comment. (n.7))). As Mr. Tony notes, in application note eight's example, "two counts initially group under subsection (a) and then further group with a third count under subsection (d)."

Thus, the district court did not err in finding that all the embezzled funds resulted from relevant conduct and should be included in the amount of loss under § 2B1.1(b)(1). See Sheahan, 31 F.3d at 599-600; United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994). As Lange made no disclosure that he was paying himself commissions on car sales, and failed to prove these payments were legitimate sales commissions, as opposed to embezzled profits, we reject the assertion that the transfers of funds from First Fleet Services accounts were not part of the Credit Union's theft losses.

See United States v. Maggard, 156 F.3d 843, 849 (8th Cir. 1998) ("Some offenses . . . are `continuing offenses' for which the completion date controls which version of the Sentencing Guidelines should apply." (quoting United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994))); U.S.S.G. § 1B1.11 cmt. 2 ("Under subsection (b)(1), the last date of the offense of conviction is the controlling date for ex post facto purposes." (underline omitted)).

Although Mooney was sentenced on August 21, 2002, the district court applied the 1994 guidelines because those in effect in 2002 would have resulted in a higher sentencing range for the amount of gain found to have resulted from his offenses. See U.S.S.G. § 1B1.11(b)(1) (unless there is an ex post facto problem, the guidelines in effect on the date of sentencing should be used rather than those in effect on the date of the offense); United States v. Reetz, 18 F.3d 595, 597-98 (8th Cir. 1994). Mooney does not challenge the court's use of the 1994 guidelines, and § 2B1.4 is identical in both versions except for the use of gender neutral language in 2002.

See Adler v. Espy, 35 F.3d 263, 264 (7th Cir. 1994); Ortega v. United States, 270 F.3d 540, 548-49 (8th Cir. 2001); United States v. Bartlett, 856 F.2d 1071, 1080 n. 13 (8th Cir. 1988); cf. Woodhill Corp. v. Federal Emergency Management Agency, 168 F.3d 1025, 1027-28 (7th Cir. 1999); United States v. White, 882 F.2d 250, 252 (7th Cir. 1989). Grouping — the purpose and usual effect of which are to limit the defendant's sentence to the punishment for the most serious of the grouped offenses, U.S.S.G. ch. 3, pt. D, Introductory Commentary; United States v. Runyan, 290 F.3d 223, 251 (5th Cir. 2002); United States v. Kalust, 249 F.3d 106, 110 (2d Cir. 2001); United States v. Reetz, 18 F.3d 595, 598 and n. 3 (8th Cir. 1994); United States v. Patterson, 947 F.2d 635, 636-37 (2d Cir. 1991) — is done when a defendant is convicted of multiple counts so closely related that they essentially merge into a single offense; or, in the words of the guideline, when they inflict "substantially the same harm." U.S.S.G. § 3D1.2. When, as in this case, the victims are different (the victims of the gambling offense are the community as a whole, as in other "victimless" crimes, and perhaps the gamblers themselves, if a paternalistic view is taken, while the victims of the tax offenses are the members of the taxpaying public), grouping is improper, as several cases hold with regard to the closely related question whether to group fraud and tax evasion.

Further, the court observed that it is well established that the completion date of a conspiracy determines which version of the guidelines applies, and "a '"common scheme or plan" by an individual and the "same course of conduct" by an individual are the unilateral equivalents to the continuing group offense of conspiracy.'" Id. at 1251 (quoting United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994)). The court therefore held that the amended version of the guidelines applied to all counts, including those relating to conduct occurring prior to the amendments.

An infringement of the ex post facto clause occurs only if the operative Guidelines at sentencing "produce a sentence harsher than one permitted under the Guidelines in effect at the time the crime is committed." United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994) (quotation omitted); see also California Dep't of Corrections v. Morales, 115 S.Ct. 1597, 1602 n. 3 (1995) ("[T]he focus of the ex post facto inquiry is . . . on whether any [legislative] change alters the definition of criminal conduct or increases the penalty by which a crime is punishable."). Here, the Guideline provisions under discussion remained the same from the time Strange committed his crime, in the summer of 1993, until the date of his sentencing.